Legal awareness- this is one of the forms of social consciousness, which is a system of legal views, theories, ideas, ideas, beliefs, assessments, moods, feelings, which express the attitude of individuals, social groups, the whole society to existing and desired law, to legal phenomena, to behavior of people in the field of law. That is, this subjective perception legal phenomena by people.
Types of legal consciousness:
· Individual legal consciousness- a person’s personal attitude to law (reflects the views and beliefs of a particular individual). The level of legal awareness in this case is determined by the abilities and capabilities of the individual.
· Group- attitude towards the law of various small social groups and collectives.
· Corporate- legal awareness of representatives various professions, social groups and layers, party legal consciousness.
· Mass- legal awareness of the vast masses of people.
· Public- attitude to the law of the entire society (the sum of accumulated knowledge, ideas about law over the entire existence of mankind).
Structure of legal consciousness:
1. The first element is informational. This is the presence in the mind of a certain amount of information about the law.
2. The second element is evaluative. Having received information about a normative act, a person somehow relates to it, evaluates it somehow, and compares it with his own values.
3. The third is strong-willed. Having learned about the law and assessed it, a person decides what he will do under the conditions provided for by the law. To use the law or not.
Functions of legal consciousness:
· Cognitive function
· Evaluation function
· Regulatory function
· Prognostic function(modelling) (It consists in foreseeing what norms need to be applied and how to act so that the rights and responsibilities enshrined in them effectively regulate social relations)
There is a close mutual connection between law and legal consciousness. This connection is manifested both in the influence of legal consciousness on the law, and vice versa - in the influence of law on legal consciousness. First of all, this influence manifests itself in the process of formation of law and is very noticeable at its final stage - the stage of lawmaking. It lies in the fact that it is legal consciousness that develops ideas about the necessity and need for making certain regulatory decisions. The level of legal awareness and legal culture of all subjects participating in the creation of normative legal acts is of decisive importance.
Legal nihilism(from Lat. Nihil - nothing, nothing) - denial of right as social institution, a system of rules of behavior that can successfully regulate relationships between people
Manifestation of legal nihilism:
Many legal theorists point out legal nihilism as one of the reasons for committing crimes, since it characterizes, through low legal awareness, a lack of respect for the law, and the predominant non-use of it in everyday life, when an individual or group is primarily guided in their actions by traditions, political, economic or other interests, but not the law.
Legal idealism (legal fetishism)- an exaggerated attitude towards legal means, an overestimation of the role of law and its capabilities, the conviction that with the help of laws all social problems can be solved.
Manifestation of legal idealism:
Representatives of legal idealism are confident that the adoption of good laws can change the current state of affairs for the better. However, this position is erroneous. Law, despite the many regulators, is not omnipotent, and legal methods of regulation require appropriate conditions for their implementation and the creation of prepared ground for their actions
Extremes of legal nihilism (idealism) by sources of law are:
1) on the one hand, constitutional nihilism (idealism),
2) on the other hand, doctrinal nihilism (idealism).
As a result, simplified:
Constitutional nihilism = doctrinal idealism,
Constitutional idealism = doctrinal nihilism.
Both constitutional nihilism and doctrinal nihilism can be a consequence of dementia and a low level of knowledge.
All children are initially total nihilists. The next stage of development is mastery of doctrine (for example, house building, scientific communism, cultural studies, etc.). Knowledge and understanding of legislation follows.
If a person graduated from a university, then his constitutional nihilism may be a consequence of doctrinal idealism.
Doctrinal nihilism does not entail constitutional idealism, since the latter is higher in the level of knowledge. A doctrinal nihilist can be a total nihilist.
A constitutional nihilist can also be a doctrinal nihilist.
An example of constitutional idealism– recognition of the text of the constitution as the highest set of norms, rules, meanings of words/concepts, etc.
Doctrine example– theological religion, scientific religion: the doctrine of communism, dianetics, cultural studies, theory of state and law (TSL), etc. etc.
An example of doctrinal idealism– recognition of the texts of the Bible, Koran, Aristotle, Nietzsche, Ozhegov, Bakhtin, Latynina, any full name of the author of a textbook on TGP, etc., any other full name as the highest set of norms, rules, meanings of words, etc. That is, a doctrinal idealist, in order to check the meaning of the word “society,” does not look into the Civil Code of the Russian Federation, like a constitutional idealist, but into the dictionary of Ozhegov and other Latinists.
An example of constitutional nihilism(often = doctrinal idealism) – the assertion that in the USSR there was a phobia of the word “democracy”.
previously, but, unfortunately, has not found its embodiment at the present time. Today it is very important to comprehend the legal ideas of prominent Russian lawyers of the past, one of whom was Professor I.E. Farber.
1 See: Farber I.E., Rzhevsky V.A. Questions of the theory of Soviet constitutional law. Saratov, 1967. P. 6.
2 Ibid. pp. 15-16.
3 See: Ibid. S. 5.
4 See: Soviet state law / ed. I.E. Farber. Saratov, 1979. P. 159.
5 See: Farber I.E. Freedom and human rights in the Soviet state. Saratov, 1974.
6 Bondar N.S. Scientific and theoretical origins of the constitutional worldview (in the context of the creative heritage of Professor I.E. Farber) // Constitutional development of Russia: interuniversity collection of scientific articles. Saratov, 2008. Issue. 9. pp. 47-48.
7 State and law. 1996. No. 9. P. 136-138.
N.I. Matuzov
LEGAL IDEALISM
AS A SPECIFIC FORM OF DEFORMATION OF PUBLIC CONSCIOUSNESS
The article is dedicated to the memory of the prominent domestic legal scholar I.E. Farber, who worked for many years at the Saratov State Law Academy. It examines issues related to the characterization of legal idealism as a phenomenon opposite to legal nihilism - the essence, main features, features, causes, destructive role in the development of society, its political and legal system, lawmaking, and legal reality in general.
Key words: law, legal idealism, legal nihilism, mentality, lawmaking, legal consciousness, political and legal culture, traditions, reforms.
LEGAL IDEALISM AS A SPECIFIC FORM
OF THE DEFORMATION SOCIAL CONSCIOUSNESS
This article discusses issues related to the characteristic problems of legal idealism as a phenomenon, the opposite legal nihilism - the essence, the main features, characteristics, causes, destructive role in the development of society and its political and legal system, law, the validity of the whole. The article is dedicated to the memory of a prominent Russian scientist and lawyer I.E. Farber, who worked for many years in the Saratov State Academy of Law.
Keywords: law, legal idealism, legal nihilism, mentality, law, legal awareness, political and legal culture, tradition, reform.
Isaac Efimovich Farber was a versatile scientist, but he made the greatest contribution to the development of the theory of law, legal consciousness and human rights. In 1959, his work “On the Essence of Law” was published, in which he, in a highly polemical form (there was a heated discussion on this issue in the literature), firmly defended the normative understanding of the phenomenon of law, proving that only under this condition can effective legal regulation of public life and proper law and order in the country. He defended his doctoral dissertation on the problem of legal consciousness, on the basis of which he published a monograph1.
© Matuzov Nikolay Ignatievich, 2013
Doctor of Law, Professor, Honored Scientist of the Russian Federation, Professor of the Department of Theory of State and Law (Saratov State Law Academy); e-mail: [email protected] 19
The author defined legal consciousness as “the unity of ideology and social psychology, the dialectical interdependence of legal ideas and legal feelings (emotions)”2. At the same time, Isaac Efimovich noted that, unfortunately, in science there is a widespread opinion that there is no social psychology, that this very concept is supposedly anti-scientific, invented by bourgeois psychosociology, which distorts the true connection between sociology and psychology. The author criticized this thesis and essentially debunked it.
Among the legal feelings, the presence of which, by the way, was denied by many scientists at that time, Isaac Efimovich included such as a sense of legality, justice, anger, indignation, indignation about crimes being committed, especially serious, cruel ones, or, on the contrary, a feeling of satisfaction with those that evil has been punished, that truth and justice have triumphed. All this is the psychological, emotional side of legal consciousness, to which the author attached paramount importance. Isaac Efimovich assessed the level of legal awareness of society of that time as very, to put it mildly, low, and considered it as flawed and inferior. This is how it remains to a large extent today - underdeveloped, eclectic, deformed, and not meeting modern requirements. The proposed article is to some extent consonant with the ideas that
put forward and defended by Isaac Efimovich Farber.
In life, people most often encounter various manifestations of legal nihilism. He is constantly on everyone’s lips and never leaves the pages of print or television screens. They even got used to it to some extent, because it became the usual norm of behavior, a “way of life”3. Much less is said and written about legal idealism, which has not penetrated so deeply into the mass consciousness of people and into | everyday life. Most citizens probably don’t even suspect its existence, don’t know what it is. Meanwhile, the harm from legal idealism | no less than from legal nihilism. This is usually realized
| “later”, when its negative consequences become obvious.
| It should be noted that the very concept of “legal idealism” is to some extent
| conditional penalty. The term “idealism” is used here not in a purely philosophical sense (a certain worldview), but means “idealization”, “idealist”,
° “ideal”, which usually means separation from reality
1 arrogance, naivety, romanticism, dreams of beauty, but not reality. These are the ones
| cases when they say about someone: “He is an incorrigible idealist,” i.e. speech
| we are talking about a phenomenon akin to “Manilovism”, empty fantasies.
1 This kind of idealism manifests itself in one way or another in all areas of life
° society, including legal, which gives grounds to call it legal, or
¿5 legal, as opposed to legal (juridical) nihilism.
1 Of course, we can also talk about political, moral and other types of idealism. Let's see what all this means in practice. specific examples
from our recent Soviet and post-Soviet history.
It is known that in communist times the favorite method of leading the “broad working masses” was the proclamation of loud political slogans and initiatives, the adoption of “historic”, “fateful”, “epoch-making” decisions and resolutions on the further development, increase, strengthening, strengthening of something . A kind of cult of all kinds was implanted
five-year and more distant plans and programs, reckless faith in their magical power. And all of them, as a rule, were translated into the language of laws, which because of this strongly resembled congress party resolutions.
Even deadlines were set for the final achievement of the dream of a bright future, that is, an ideal happy society. Inflated slogans, initiatives, promises were designed to inspire people “to heroic deeds.” In Herzen's words, ideology was placed above fact. The construction of castles in the air (or rather paper ones) helped to live in a world of illusions. However, reality quickly destroyed these ephemeral temples and returned them to the world of harsh realities.
The inertia of political and legal idealism was then continued and even strengthened to a certain extent by accelerated but unsystematic plans for the “restructuring” of the country in the second half of the 80s. One of the sad examples of legal idealism and extreme subjectivism is the so-called. “anti-alcohol legislation”, with the help of which the then Soviet leaders tried to put an end to such a complex social, moral and psychological problem as drunkenness in one fell swoop. What came of this is well known.
Equally chaotic, and in many ways adventurous, were many of the projects for the instant transformation of Russia in the 90s. of the past century. Goals were set that would take Western countries centuries to achieve, but they wanted to do everything at once and as quickly as possible. Few people were interested in real possibilities back then. Moreover, it had to be done like “theirs”, without taking into account Russian traditions and specifics. As a result, many things simply did not take root on domestic soil. w
There was even a very popular “500 days” program at that time. n It was during this period that it was supposed to transform “developed socialism” into C
“developed capitalism”, ensure the transition from a planned economy to a t economy
market, and at the same time break the mentality of the mentioned “folk
masses”, accustomed to living in a different coordinate system. E. Gaidar’s desperate call at the beginning of the reforms was similar in essence: “You just have to close your eyes tightly and jump into the unknown.”4 Into “the unknown” means at random, where to
the curve will output. There was no plan other than a strong “want and desire” |
change everything in a Bolshevik way, break everything at any cost. YU
Surprisingly, there were people who believed in such miracles. This was idealism in its purest form, multiplied by voluntarism. And put everything forward
They tried to implement the ideas that were being discussed not least with the help of law, but with laws, decrees, government regulations, in a word - “decrees”. Since the romantic plans were not destined to come true as planned, | then the “romantic right” along with them failed - it turned out to be purely paper, faith in it was lost or, in any case, undermined. 99
Of course, life did not remain outside of any legal regulation. Codes, the Constitution, old and new (relatively real) legal norms were in effect. However, in general, Russian legislation of that period was a “patchwork quilt” woven from continuous contradictions. The Soviet system collapsed, but nothing stable has yet emerged in its place. The reforms were difficult and confusing. It was this circumstance that gave rise to A.I. Solzhenitsyn to declare: “Russia is getting out of the communist swamp in the most absurd way.”5 21
The same thing happened in public consciousness, in particular legal consciousness, which was extremely heterogeneous, deformed, and chaotic. It contained both old, outdated stereotypes and the latest trends and trends, reflecting the unsettled mentality of various layers and groups of the population, which did not have time to “digest” the cataclysms that arose in the country. The change in social and ideological guidelines for most citizens turned out to be unexpected and painful. Hence - eclecticism, confusion in consciousness. This is how it remains to a large extent to this day.
Among the many contradictions tearing apart Russian society today, there is also a paradoxical and bizarre interweaving of, on the one hand, total legal nihilism, and on the other, naive legal idealism. Oddly enough, both of these phenomena, seemingly multi-vector and incompatible, coexist peacefully and together form a common bleak picture of political and legal lack of culture.
In the first case, laws are openly disrespected, ignored, and violated; in the second, on the contrary, they are given the significance of a kind of miraculous power that can solve all pressing problems in one fell swoop. Mass consciousness requires the adoption of more and more new laws on almost every issue. These extremes are a consequence of many reasons, without overcoming which the idea of a rule of law state is unfeasible.
If legal nihilism in the most general terms means the denial or underestimation of law, then legal idealism means its overestimation and idealization. Both of these phenomena are fueled by the same roots - legal ignorance, immature legal consciousness, and a lack of political and legal culture. Such phenomena, despite their, as already noted, opposite direction, ultimately converge and form, as it were, a “double” common evil. In other words, we have two sides of the “same coin”.
Although outwardly legal idealism is less noticeable and less striking, this phenomenon causes the same harm to the state, society, and citizens as legal nihilism. It is extremely destructive in its consequences, which are not detected immediately, but only ultimately. That is why, when fighting legal nihilism, one should not go to the other extreme - legal fetishism, voluntarism, idealism.
You cannot place unrealistic hopes on the law; it is not omnipotent. It is naive to demand from it more than it obviously can give; it must be given the place and role that arise from the objective capabilities of a given institution. Overwhelming tasks can only compromise the right. Therefore, it cannot be elevated to an absolute. Modern social consciousness needs to get rid of this rudiment (“birthmark”).
As is known, Marxism at one time caustically ridiculed all kinds of concepts of “legal socialism”. Thus, F. Engels, criticizing Lamartine’s manifesto in 1847, wrote that “the measures proposed in it are naive and devoid of practical meaning, such as the abolition of beggary, social disasters, pauperism by emergency law, the establishment of a special ministry of people’s life by legislative means, etc. "6. But if “legal socialism” is impossible, then “legal capitalism” with its free market economy is even more unthinkable.
Interestingly, similar attempts are being made today. Thus, according to the press, in Brazil the issue of enshrining in the constitution the right of citizens to happiness is being seriously discussed7. If so, then a Ministry of Happiness should be created (something like Orwell’s Ministry of Truth), otherwise who will ensure this right. Ideas about “constitutional happiness” are supported in Japan and South Korea. How can one not recall the wonderful “City of the Sun” by Tommaso Campanella with its serene and happy inhabitants.
Meanwhile, in the context of the legal euphoria that arose in our country during the period of “perestroika,” many were convinced that it was enough to adopt good, wise laws, and all the most complex and pressing problems of society would be solved. “If we pass a package of laws, life will improve.” But no miracle happened, laws were passed, but things remained stagnant or even worsened. As a result, there was a certain disappointment in the laws, and signs of legal skepticism appeared. Irritated voices were heard from the lower classes: “Enough, we’re already fed up with the laws, they don’t give anything.”
This is understandable - after all, laws themselves cannot feed, clothe, shoe people, or improve their well-being; they can only contribute or not contribute to this, secure, protect, regulate, distribute something, but not produce something. Therefore, relying only on “speedy” law-making means nourishing legal illusions. We need, first of all, social, economic, political, cultural, organizational and other measures plus laws. Only the combined action of all these factors can give the desired effect.
I remember that at the height of the work of the Union Parliament, the press in negatively ironic tones, not without sarcasm, wrote about “magic”, the “ninth wave”, “boom”, the “cascade” of lawmaking, about “stillborn” and half-forgotten laws. And one of the deputies (K.D. Lubenchenko) gloomily compared the legislative efforts of
colleagues and their own “with attempts to grow a garden in harsh conditions from the desert; sometimes it seems that the laws we pass are rejected | reality, like seedlings in barren soil. And there is a feeling of dis-
enchantment and hopelessness"8. With
To some extent, this continued during the activities of the former Supreme Soviet of Russia, as well as subsequent convocations of the State Duma. It turned out that there are no quick and easy solutions. “Legal hating and giving” doesn’t help, it’s not the right way. We still see it all the time
broken or ineffective laws. And Roman jurists also asserted | gave: “An inactive law is worse than an absent one.” D
It is clear that the transformations being carried out in Russian society need | reliable legal support, but it cannot be purely volitional. Impotence
laws gives rise to the same nihilism, disbelief in the real significance of accepting
possible acts, in their ability to change the situation. The laws do not work, which means ~ and the attitude towards them is indifferent, their prestige falls along with the prestige of the authorities. 3
Legal idealism has long given rise to a crisis of faith among a significant portion of people in legislative, and, more broadly, in parliamentary-constitutional ways of solving pressing problems, in new progressive institutions. From the very beginning, some slogans of perestroika (glasnost, acceleration, forced democracy, freedom without borders, immediate eradication of drunkenness, etc.) and then of the reformation period (au-23) suffered from idealism.
ral privatization, general “denationalization”, “shock therapy”, “market fundamentalism”).
I wanted to quickly translate all this into laws, enshrine it legally, and proclaim it in constitutions. In fact, a forced transition of society from one state to another did not work out; the waits dragged on. A “social hangover” has set in - bitter and painful. Idealistic, hasty projects, as a rule, severely avenge themselves. This is the same nihilism, only with the opposite sign. Or its flip side.
The spread of legal idealism was also facilitated by the fact that for a long time a purely pragmatic approach to law (a tool, an instrument, a means, a lever, etc.) prevailed in our country. That is, they proceeded from the Marxist-Leninist thesis that “the law is a political measure, it is politics”9. Law was viewed as a kind of ideological cudgel with which one can solve this or that problem, and not as an important social and cultural value, a humanistic idea, or an institution of democracy. In accordance with this, an “overwhelming load” was placed on the law; too much hope was placed on it, which was not justified in the future.
Legal skepticism especially intensified in the midst of “shock reforms,” when society clearly realized that many laws and decrees hastily adopted during the period of renewal turned out to be, to put it mildly, ineffective and did not lead to the achievement of the desired goals, and some gave a negative result. The herald of the idea of “absolute freedom” F. Nietzsche wrote: “Don’t tell me why you are free: tell me why you are free”10. In fact - for what? It seems that Russia, having won freedom, did not use it in the best way. § Back in 2002, being a candidate for President of Russia, V.V. Putin is frank
~ but he said that “in recent years we have adopted hundreds of programs, decisions, * priority measures. But since there are so many of them, it means they are unreal. Are we all the time? followed the lead of events, dealing with the consequences of their own reckless steps”11. And when he was already president, he said in one of his speeches: | “We need to stop engaging in empty promises and demagoguery. We must tell the people the truth, what the state can do and what it cannot do. And it will be more honest and fair. We have already promised so much that even if we wanted to fulfill everything, it would require two consolidated budgets of the country. This discredits the government, it loses trust.”12 Meanwhile, popular wisdom says: whoever has lost trust has nothing more to lose. In other words, idealistic ideas were put forward that were not feasible at the moment.
| moment of goals and objectives, impulsive decisions were made. No one calculated the consequences and the results. A gigantic gap arose between the laws and what was being done for the sake of accelerated liberal reforms. Have you forgotten what the laws are? not omnipotent. Unfortunately, repetitions of past lessons still occur today. and As before, laws, decrees, regulations or individual 1 legal norms are adopted that are obviously unenforceable or ineffective. I Romanticism still survives in some heads.
The people have an ingrained opinion: the law can do anything. And this despite the disrespectful, to put it mildly, attitude towards him. This paradox once again shows that legal nihilism and legal idealism are two poles of one phenomenon, which reflects our immature Russian mentality. A truly mysterious phenomenon. Psychologically, this can be explained by a kind of “split” of consciousness
law makers, politicians, authorities, and all citizens or its confusion.
The first article of the Constitution of the Russian Federation, which states that Russia is already a rule-of-law state, can be considered a well-known leap ahead. Thus, what is desired is accepted as reality. It is no coincidence that even in the Presidential Address of B.N. Yeltsin to the Federal Assembly (1994), this provision was actually disavowed: “We must admit that Russia does not yet have a full-fledged democratic state governed by the rule of law”13.
Even some Russian autocrats (Catherine II, Alexander I, Alexander II) dreamed of the tempting idea of a rule of law, human rights and freedoms. However, these beautiful dreams remained dreams. And they could not be implemented in those conditions. To some extent, all of our “perestroika” and then “reform” legislation sins of idealism, projectism, and populism. I wanted to keep up with “fashion” and even run “ahead of the locomotive”, to do everything like “them”, as is customary in “decent society”.
However, the real trouble is that even good and necessary laws do not work, in some cases because there are no necessary mechanisms for their implementation, in others (and this is the main reason) because the abnormal environment of their functioning extends around. Moral, political and legal nihilism is flourishing, social relations are in a state of extreme instability and instability, laws are powerless to streamline, stabilize, or direct them in the right direction. In this sense, the law is experiencing unprecedented “overload”; it is unable to cope with its regulatory and protective functions. Or it doesn't quite cope.
It is impossible to overcome poverty, crime, corruption, alcoholism, and drug addiction using legal means alone. sh These means must be used in conjunction with other measures - economic, political, social, cultural, moral, etc.
organizational. Only then can they give the desired effect, and not remain t
on paper. In Russia it has always been the executive-managerial and
the controlling side of the matter. O"
For example, the problem of legal implementation and especially law enforcement has traditionally been with us and still remains “ Achilles heel» all legal
practices. In such a situation, even the most “wise” laws become meaningless. |
At one time, Sh.-L. Montesquieu wrote: “When I go to any country, I
I'm not interested in whether the laws there are good, but in how they are implemented, and
for good laws are found everywhere.”14 Another classic advised: “Create
those are as few laws as possible, but make sure they are observed.”15. Sounds quite
modern. L
Broadcast promises, distribution of “bills of exchange”, even if issued |
in the form of laws and decrees mean, to put it mildly, legal idealism, and if
to put it more sharply - conscious legal demagoguery, the creation of illusions and 99
« soap bubbles" It is known that we know how to build “Potemkin villages”, ^
especially during election campaigns. Decisions, messages, programs should not 3 be obviously unfeasible, designed only to “relieve tension.” Their immediacy then leads to serious, irreparable consequences.
Therefore, if a particular law does not work, this does not mean that it is bad. The environment, atmosphere, external conditions are important. Not everything depends on the law itself.
The problem is more complicated. Certain segments of the population are not psychologically ready 25
to certain changes, they often resist them. Legal norms cannot untie the tight tangles of emerging contradictions, and in some cases they encounter opposition. Instructions from above in many cases are not internally perceived by those for whom they are intended. Hence the desire of state leaders for “manual control”.
And this is also idealism, because legislators, based on their lofty goals, ideas, and intentions, “issue” laws in an assembly line manner, knowing in advance that they do not achieve their final goals. Often the most important acts get stuck halfway to their immediate addressees; they are blocked by the bureaucracy due to general laxity, lack of control and corruption. Among the new nomenklatura there are those who approach any undertaking, as before, according to the principle: it is important to “crow” in time, and then at least it won’t dawn.
The government is powerless to make laws work, so it simply issues them in large numbers. However, the legislator does not have the right to follow the lead of ordinary consciousness - such and such a law must be urgently adopted; he is obliged to look further, to foresee the consequences. Legal self-delusion is dangerous, because it gives rise to groundless hopes and lulls society to sleep.
Attempts to “spur” social progress through laws alone usually end in embarrassment. Journalists make jokes: the Duma issues so many laws, but the people complain about lawlessness. By the way, there are currently about 1,500 bills under consideration in the Russian State Duma. And the ancient Romans said: in the most corrupt state greatest number laws. Now it is clear to everyone: hundreds or even thousands of laws stipulate
3 measures cannot be changed unless they are supported by other measures. ~ It has been noted more than once in the press and literature: legislators, seeing how ignorant
* the influence of their acts on the situation in society, every now and then they try to include-? to take direct control of the country, thereby expanding its com- | petition. On the other hand, the executive branch is expanding | into the field of lawmaking, creating legal acts for the immediate needs of management. Legal idealists include all those who believe
| possible to restore order in the country exclusively with the help of legal
| establishments.
>§ The question arises: what should be done first - create conditions or
| pass laws? Obviously, both. The contrast between these two is | was incorrect and counterproductive. Legislative and public processes | must develop synchronously, they are interdependent. Meanwhile, we often | There are situations when legal norms either get ahead of themselves or are adopted “to catch up”. It also happens that laws and decrees are issued not for the purpose of their real impact on social relations, but to relieve dissatisfaction.
1 conflicts and tensions in society, especially in the social sphere.
| Many people are possessed by illusions, including legislators who are convinced
We believe that with the help of laws, in one fell swoop, we can reform the country and heal society from diseases. The 2000 Presidential Address to the Federal Assembly said: “We have become hostages to an economic model based on populist politics. State lies have taken hold. We pass numerous laws, knowing in advance that they are not backed by real funding. 26 We are simply pushing through certain decisions based on the political situation.”16
The press often divides laws into good, bad and none. None - this means unnecessary, meaningless, having no moral or material basis. Accordingly, they are not perceived by those for whom they are intended. At best, they first raise some expectations, then disappointment, and then anger at the government and its legal system. Unfortunately, there are many such empty, unrealistic laws and they cause enormous harm to people’s sense of justice.
An interesting idea has been expressed in the literature that it may not be worth considering legal idealism as exclusively negative phenomenon. So, according to V.V. Sorokin, “the declaration of legal ideals can be considered acceptable in the transition period as a variant of legal idealism. Moderate legal romanticism supports respect for the law and reveals the reserves of creative activity of subjects of legal activity”17. Interesting idea, which deserves attention. But some doubts immediately arise.
“Allow”, of course, is possible, because for all of us to dream, wish and daydream, as they say, is not harmful. However, memory suggests that for too long we have been dreaming about future (“deferred”) happiness, which never came. False expectations “warmed the soul”, served as an excuse for social disorder and deprivation of millions of people, but ultimately ended in the collapse of all these hopes, in deception. Today, perhaps, what is more in demand is not tempting “romantic ideals”, but healthy pragmatism, realism, and common sense. Therefore, it seems to us that legal idealism, especially in its most hypertrophied (practical) forms, is still undesirable. Life in the world of illusions is becoming a thing of the past.
Continuing reforms in Russia requires a solid legal framework, especially in the economic sphere. However, it is important to have a clear understanding of the limits and real possibilities of legal laws, and the ways of their implementation. It has long been said: in order not to be disappointed, you should not be enchanted. Society needs to overcome both legal nihilism and legal idealism, which feed each other.
1 See: Farber I.E. Legal awareness as a form of social consciousness. M., 1963.
2 Ibid. P. 129.
3 The problem of nihilism was considered by the author of these lines earlier. See: Matuzov N.I. Legal nihilism as a phenomenon of Russian political mentality // Law and Life. 2002. No. 74; It's him. Legal nihilism as a way of life // Legal culture. 2012. No. 1 (12), etc.
5 Solzhenitsyn A.I. Russia is in collapse. M., 1997; see also: Polyakov Yu.I. From an empire of lies to a republic of lies. M., 1997; Valovoy D.V. Economics of absurdities and paradoxes. M., 1991; Gundarev I.A. Paradoxes of Russian reforms. M., 1997.
6 Marx K., Engels F. Soch. T. 4. P. 346.
8 Lubenchenko K.D. Unemployment laws // Izvestia. 1990. April 25; Poludnyakov V.N. Cemetery of Dead Laws // Rossiyskaya Gazeta. 1992. 22 Nov.
9 Lenin V.I. Full collection op. T. 30. P. 99.
10 Nietzsche F. Beyond good and evil. St. Petersburg, 1904. P. 7.
14 Montesquieu Sh.-L. About the spirit of laws. St. Petersburg, 1900. P. 274.
15 Locke J. Two treatises on government. Works: in 3 volumes. T. 3. M., 1988. P. 79.
17 See: The legal system of Russia in the context of globalization and regional integration: theory and practice / ed. S.V. Polenina and E.V. Skurko. M., 2006. P. 481.
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In modern Russian society there are various shapes manifestations of legal nihilism.
Direct conscious violation of laws and regulations:
Massive non-compliance and violation of legal norms:
Spread of anti-legal psychology:
"War of Laws":
Massive violation of human rights and freedoms:
Legal idealism is a revaluation of law and its capabilities.
The main forms of manifestation of legal idealism are:
The reasons for the spread of legal idealism in Russian society include:
The main criteria for combating legal idealism are
Legal idealism and legal nihilism are related, interconnected phenomena. Sooner or later, legal idealism turns into legal nihilism, and legal nihilism feeds legal idealism. Both of these phenomena have similar roots. Consequently, it is necessary to fight simultaneously both legal idealism and legal nihilism.
Legal idealism is a form of legal consciousness, expressed in a revaluation of the possibilities of rights and the possibilities for their implementation.
The main forms of manifestation: 1) unrealistic attitude towards law; 2) abstract, detached from life perception of law; 3) unjustified faith of the population in laws that can quickly change their lives; 4) the perception of law in the literal sense as a regulator of social relations; 5) ignoring the existence in reality of regulators of social relations other than law; 6) the idealistic attitude of legislative bodies towards the law, which can be expressed in the form of: a) ignoring reality when developing and adopting regulations; b) ill-conceived mechanism for implementing the normative act; c) insufficient understanding of the connection that exists between the interests of the population and the normative act; d) blind faith in solving current life problems through the adoption of a normative act, etc.; 7) understanding by state authorities and officials of the possibilities of the normative act and the limits of legal influence, which do not correspond to the real situation; 8) focusing only on the formal side of law, etc.
Reasons for the spread: 1) features in historical development states; 2) the historical power of the state in all spheres of public life, and as a result the subordination of law to the state; 3) insufficient number of legal norms, which lasted for several decades and even centuries; 4) orientation towards Western rule-of-law states, their idealization, as well as the borrowing of their norms and traditions; 5) the presence of an undeveloped and distorted legal consciousness; 6) lack of development of political and legal culture; 7) legal illiteracy, etc. The main directions for the fight against legal idealism: 1) strengthening the regime of law and order in the state; 2) guaranteeing the provision of the declared rights and freedoms of man and citizen to the population of the state; 3) improving the quality of regulations and reducing them; 4) when adopting normative acts, the legislator takes into account reality and proximity to the life of the population; 5) creation and development of a mechanism for the implementation of a regulatory act that will meet the requirements of reliability and thoughtfulness; 6) implementation of legal education; 7) bringing and bringing the norms of law and the entire legal science closer to reality and reality, etc.
SOCIAL AND TECHNICAL STANDARDS: CONCEPT, FEATURES AND RELATIONSHIP
Social norms are generally binding and objectively necessary rules of behavior that regulate relationships between people. The main types of social norms: 1) customs are stable rules of behavior of people that have historically developed as a result repetition, are preserved in the minds of people and are protected through public opinion; 2) religious norms are a set of rules of behavior that reflect a certain worldview and attitude, based on belief in the existence of God and supernatural forces; 3) corporate norms are a system of rules of behavior established by a certain corporate organization for the purpose of regulating relations between its members, but only within the powers established by the state; 4) political norms are a set of general rules of behavior that are established and sanctioned by subjects of the political system regarding the formation and use of state power; 5) organizational norms are rules of behavior that govern relations related to production and organizational issues. Social norms are also divided into the following types: 1) moral norms; 2) ethical standards; 3) family norms; 4) norms of traditions and habits; 5) business practices; 6) rules of etiquette. Features of social norms: 1) social relations are the subject of regulation; 2) the subjects of social norms are people who are representatives of the social sphere. Technical norms are rules of conduct that regulate a person’s relationship to nature and technology and arise regarding their most appropriate use. Technical standards ensure the expedient and harmless use of natural resources, technical achievements and tools, as they determine the optimal methods, techniques and means of people handling technical objects. Features of technical standards: 1) the subject of regulation is not social relations, but technical ones; 2) the subjects of technical standards are not only people, but also nature and technology. There is interaction between technical and social norms, since some technical norms affect the essential interests of certain social communities and become technical-social. Technical and social norms are generally binding norms that are supported not only by the power of nature, but also by law and the state; their failure to comply entails legal consequences.
The relationship between law and moral standards
Law is a system of special social norms that, taking into account universal justice and freedom, are recognized, established and protected by the state, are formally defined, regulate social relations, and are generally binding for all members of society.
Morality is a system of norms and principles that regulate people’s behavior from the standpoint of good and evil, fair and unfair, etc.
Law is a system of generally binding, formally defined legal norms expressing the general, class will (specific interests of society, classes), established and ensured by the state and aimed at regulating social relations.
A rule of law is a formally defined rule of conduct that is binding on everyone.
The norm of morality is the rules of behavior that regulate social relations on the basis of historically developing ideas about good and evil, honest and dishonest, un(fair).
Unity between law and morality:
· - a single basis - a universal human system of social values and ideas about goodness, justice, honesty, equality;
· - normative and regulatory nature - law and morality act as determinants of the boundaries of people’s behavior in typical life situations;
· - a single object of regulation (social relations), achieving the same goals (socially beneficial development society), foundation of general historical value and indicators of the level of development of social and cultural life of the socio-political system.
Differences between law and morality:
· - by origin (morality arises with society, law - with the state);
· - by the form of expression (morality is contained in the public consciousness, law - in special normative acts that have a written form);
· - by scope (morality can regulate almost all social relations, law - the most important and only those that are able to streamline);
· - according to the time of entry into force (moral norms are put into effect as they are realized, legal norms - within a specifically established period);
· - by the method of ensuring (moral norms are ensured by measures of social influence, norms of law - by measures of state influence);
· - according to evaluation criteria (moral norms regulate social relations from the point of view of good and evil, fair and unfair, rules of law - from the point of view of legal and illegal, lawful and unlawful).
Interaction is manifested in similar regulation of social relations, the formation of a proper legal and moral culture, responsibility, and legal consciousness among the population. Their demands largely coincide: what the law condemns and encourages, as a rule, morality condemns and encourages. And vice versa. Many legal norms follow from moral ones (thou shalt not kill, thou shalt not steal, etc.).
At the same time, contradictions between them are also possible, when the same situation can be regulated differently by law and morality due to the divergence of interests of society and the state; differences in regulatory methods; different criteria for assessing behavior; discrepancies due to the development of social life and the state; uneven development of moral norms and legal norms.
